Speech Isn't Cheap

Despite the materialism that defines American culture and our reverence for financial success, a suspicion that money really is the root of all evil retains its appeal, especially among progressives. The association of wealth with corruption is particularly clear in debates about campaign finance reform. Reformers are self-proclaimed proponents of "clean elections"; their opponents are presumed to favor dirty politics. Even centrist politicians eager to occupy the moral high ground (along with the occasional conservative like John McCain) fulminate against "big money" and "special interests."

Of course, the view that political contributions exert undue influence on policy is not exactly unfounded. Bribery, or what one Tammany Hall figure called "illegal graft" (as opposed to "honest graft"), is an especially sturdy political tradition. Voters, as well as politicians, are subject to being bought (however unwittingly) by the political ads and image-making machines that contributions finance. But fear and loathing of concentrated wealth does sometimes blind "clean election" advocates to the complexities of campaign regulations and the role of money in politics.

Nothing seems to irritate reformers more than the assertion that limits on money--whether campaign contributions or expenditures--are the equivalent of limits on speech. Money isn't speech; it's property, Supreme Court Justice Stevens declared in a recent case upholding a Missouri law limiting campaign contributions. His insistence that money isn't speech has visceral appeal; it seems so egalitarian, so democratic. But it's also wishful thinking.

Money isn't speech? Try telling that to the folks at National Public Radio the next time they beg you for dona-tions to keep their programming on the air. Money makes speech possible. The American Prospect now publishes biweekly, thanks to the generous support of wealthy benefactors. If Con-gress passed a law limiting the amount of money we could spend annually on books or newspapers, we would probably not say, "Never mind. Money isn't speech."

In our society, money facilitates the exercise of rights. Children who attend schools in poor districts don't receive equal educations unless schools throughout the state are equitably funded. Poor women don't exercise abortion rights if they can't afford abortions, unless Medicaid provides funding. Often, people need public subsidies to achieve some measure of equality, which is why progressives advocate expanding our notions of individual rights so that they protect basic economic needs, like housing or health care.

Like it or not, this relationship between money and the enjoyment of rights is an American fact of life, and as a practical matter (absent a revolution), it is essentially immutable. It is an argument for public financing of campaigns designed to subsidize candidates who do not have personal fortunes or major party support, and an argument against limits on contributions and expenditures.

When the government restricts our ability to spend money, it restricts our ability to speak. That fact doesn't end debates about campaign finance reform, but it does complicate them. They become debates about balancing individual rights (free speech) with other social goods that some presume will follow from reform--expanded access to the electoral process and increased public faith in it.

On balance, the damage done to First Amendment rights seems much greater than the promised benefits of reform proposals to limit the flow of money in and out of campaigns. Expanded access can be facilitated by public financing systems that establish a financial floor, but not a ceiling, for candidates. (Public subsidies generally provide minimum support for poor people without dictating maximum expenditures for the rich.) The promise of increased faith in the system is quite speculative. Advocates of reform claim that campaign finance abuses cause voter apathy; the claim is plausible, but I've never seen much evidence to support it. The counterclaim that these abuses have little effect on voter participation seems equally plausible. Politics has long been regarded as a scoundrel's game. Regardless of campaign finance laws, people seem to expect a certain amount of thievery from elected officials. At the same time, they manage to put their faith in quite a few.

The harms of reform to free speech (and political discourse), however, are clear. Existing restrictions on campaign contributions have already created more problems than they have solved. As almost everyone knows, federal reforms passed in 1974 limited both campaign contributions and expenditures. The Supreme Court struck down the limits on expendi-tures but upheld the limits on contributions. This ruling greatly advantaged incumbents, who don't need to buy as much speech as insurgents. In the 1996 congressional election, for example, all incumbents who spent less than half a million dollars were re-elected, while only 3 percent of all challengers who spent less than half a million dollars succeeded in knocking off an incumbent.

Still, the Supreme Court remains somewhat blindly sympathetic to reform efforts. It recently upheld limits on contributions, in a case that clearly demonstrated their dangers. Nixon v. Shrink Missouri Government PAC, which was decided in January, involved a challenge to Missouri's campaign limits by a third-party candidate who was substantially disadvantaged by the cap on individual contributions. Major party candidates had much greater visibility and access to soft money--money contributed to the parties ostensibly for party-building purposes. The law provides that soft money can be used for issue advocacy, not in support of particular candidates, but in this respect, the law is practically unenforceable. In political campaigns, it's not always possible to distinguish between advocating for issues and advocating for candidates.

Reformers propose solving access problems for insurgents by restricting soft money (the market for which was created by the 1974 reforms). But we know what new problems will follow from soft-money restrictions. Dissatisfied with the disclosure requirements that accompany contributions to political parties, wealthy contributors are already forming their own not-for-profit issue advocacy groups, which are not required to disclose their donors. These are stealth groups whose political interests or agendas aren't clear, which operate under vague names like Americans United for Good Things, and groups like Republicans for Clean Air (organized by a wealthy Bush ally, it ran anti-McCain ads in New York prior to the Republican primary).

As Supreme Court Justice Kennedy observed in his dissent in Nixon v. Shrink, limits on campaign contributions have greatly increased incentives for a new kind of "covert" political speech. Campaign finance reform "forced a substantial amount of speech underground."

Of course, covert speech can be made overt with effective disclosure requirements. Prohibiting anonymous contributions to political parties or advocacy groups does raise First Amendment concerns: Anonymity is an important element of free speech. On balance, however, the danger of a secret campaign finance system outweighs the danger of restricting the right to speak anonymously through large political contributions.

But reformers are not necessarily content with stringent disclosure requirements. Many want to limit independent expenditures and to prohibit issue advocacy groups from advertis-ing within 30 or 60 days of an election. A provision limiting independent expenditures was originally included in the McCain-Feingold bill and in the Massachusetts Clean Elections law. It was dropped from the final proposals, partly because it cut the heart out of individual rights to political speech. Imagine being prohibited by the government from buying television time or taking out an ad in your local newspaper arguing for or against particular public policies or criticizing particular candidates a month or two before an election, when people are actually paying attention.

This is the dilemma for reformers: If they limit independent expenditures, they deprive private citizens of First Amendment rights during political campaigns; if they don't, they cannot hope to limit effectively the influence of "big money" on elections.

Now imagine that we have accepted restrictions on independent expenditures as necessary evils of campaign reform. Who would be left to speak? Mort Zuckerman could write an editorial in the New York Daily News the week before the New York Senate election, endorsing Rick Lazio. But the government would prohibit you and the public interest groups you support from buying an ad in his paper criticizing Lazio and the policies of the Republican Congress. It's not surprising that The New York Times supports restrictions on fundraising by independent groups. Taken to its logical extreme, campaign finance reform will give media moguls, pundits, and elected officials exclusive rights to effective political speech in the crucial month or two before an election. I doubt that will open up our democracy in ways that reformers have in mind. ¤

About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.